CHENNAI: In a setback to the TVK, the Madras High Court on Tuesday temporarily restrained R Seenivasa Sethupathi, the MLA representing Tirupattur in Sivaganga district, from participating in Assembly proceedings, including the confidence vote that the government led by actor Vijay is set to face to prove its majority on the floor of the House.
A Division Bench comprising Justices L. Victoria Gowri and N. Senthilkumar granted the “limited interim injunction” on petitions filed by former minister and senior DMK leader KR Periakaruppan, who had lost the election by one vote.
He approached the court with urgent writ petitions seeking to restrain Seenivasa Sethupathi from participating in Assembly proceedings, as one postal ballot belonging to the Tirupattur constituency in Sivaganga district was wrongly dispatched to the Tirupattur constituency in Tirupattur district.
He also prayed that the court direct the authorities to secure the postal ballot and count it.
The Bench held that Periakaruppan had made out a strong prima facie case for a limited interim protective order.
“There shall be an order of interim injunction restraining the sixth respondent/returned candidate (Seenivasa Sethupathi) from voting or otherwise taking part in any floor test, including confidence motions, no-confidence motions, trust votes, or any voting proceedings in the Tamil Nadu Legislative Assembly where the numerical strength of the House is tested, until further orders of this court,” the Bench said in its order.
However, the court clarified that the interim order should not be construed as setting aside the election of Seenivasa Sethupathi, nor should it be treated as conferring any right upon the petitioner to be declared elected.
The Bench also directed the concerned authorities to preserve all records relating to the counting of votes.
During arguments on Sunday, at a special sitting, senior counsel Mukul Rohatgi, appearing for the petitioner, submitted that one postal ballot meant for the Tirupattur Assembly constituency (No. 185) in Sivaganga district had instead been sent to the Tirupattur Assembly constituency (No. 50) in Tirupattur district.
He described the matter as a “unique” and “peculiar” situation in which a postal ballot from the constituency where his client had contested ended up in another constituency, and the concerned Returning Officer rejected the ballot instead of sending it back to the correct constituency.
Considering that the victory margin was only one vote, he argued that had the postal ballot been returned and counted, it could have made a significant difference to the election outcome.
He therefore sought a direction for the postal ballot to be returned and counted.
However, senior counsels Abhishek Manu Singhvi and V. Raghavachari, appearing for TVK MLA Seenivasa Sethupathi, contended that the issue could only be raised through an election petition and not through a writ petition.
They argued that the petition was a “clever camouflage” aimed at seeking an injunction against the legislative participation of an elected representative instead of filing an election petition, and that the interim relief sought was “inconceivable in law.”
They further contended that no injunction could be granted in respect of a matter involving duties mandated by law.
The Bench raised several questions regarding the action taken by the Election Commission on the complaints and representations submitted by the losing candidate.
“What you say is that the ECI cannot reopen the issue because it has become functus officio. Then you say it is a matter for an election petition. How can the Election Commission say it has become functus officio when the primary issue is that one ballot paper from one constituency went to another constituency?” the Bench asked.
As directed by the court, the ECI filed an affidavit on Monday stating that it is settled law that any dispute challenging the outcome of an election is barred under Article 329(b) of the Constitution.
The ECI explained that Section 80 of the Representation of the People Act, 1951 provides that “no election shall be called into question” except through an election petition, and therefore the present petition is barred under Article 329(b) of the Constitution.
